Amicus Curiae Brief — Winston Tyler Hencely, Petitioner v. Fluor Corporation, et al.
Supreme Court briefMar 28, 2025
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No. 24-924
In the
Supreme Court of the United States
WINSTON TYLER HENCELY,
Petitioner,
v.
FLUOR CORPORATION, et al.,
Respondents.
On Petition for Writ of Certiorari to the United
States Court of A ppeals for the Fourth Circuit
MOTION FOR LEAVE TO FILE AND
BRIEF FOR AMICI CURIAE THE CENTER
FOR MILITARY LAW AND POLICY,
VETERANS LEGAL SERVICES, THE
MILITARY-VETERANS ADVOCACY, INC.,
AND THE JEWISH WAR VETERANS OF
THE UNITED STATES OF AMERICA
IN SUPPORT OF PETITIONER
Noah Heinz
Counsel of Record
A lbert Pak
Pak Heinz PLLC
20 F Street, NW, 7th Floor
Washington, DC 20001
(202) 505-6354
noah.heinz@pakheinz.com
Counsel for Amici Curiae
120384
A
(800) 274-3321 • (800) 359-6859
UNOPPOSED MOTION FOR LEAVE
TO FILE A BRIEF AS AMICI CURIAE
Under Rule 21.2(b), Amici respectfully request leave
to submit a brief as amici curiae in support of Petitioner.
Rule 37.2(a) requires providing notice of the intent to file
an amicus brief in support of a petition for certiorari no
less than ten days before the brief is due. Under the same
rule, the brief is due “30 days after the case is placed on the
docket or a response is called for by the Court, whichever
is later.” This case was placed on the docket on February
26, and so an amicus brief is due the later of March 28 or
30 days after the Court calls for a response.
Counsel for Amici inadvertently notified Respondents’
counsel Mr. Mosier on March 19, which is nine days before
the first due date. Counsel for Amici asked if Respondents
would waive the requirement. Respondents declined but
represented that they do not oppose this motion for leave.
Rules should generally be enforced, but here the notice
was late by a small amount and no prejudice resulted.
Respondents have received a 30-day extension for their
brief in opposition. And Amici’s counsel has been suitably
educated. If the Court never calls for a response (which
would render the brief timely and the motion moot), Amici
remorsefully request leave to file this amicus brief.
Noah Heinz
Counsel of Record
A lbert Pak
Pak Heinz PLLC
20 F Street, NW, 7th Floor
Washington, DC 20001
(202) 505-6354
noah.heinz@pakheinz.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
T he Combat a nt Ac t iv it ie s Defense
Furthers None Of The Federal Interests
Identified In Boyle And Contradicts This
Court’s Preemption Doctrine . . . . . . . . . . . . . . . . 4
A. Federal Common Law Is Disfavored . . . . . . 4
B. Boyle Secures Effective Federal Control
Over Federal Contractors . . . . . . . . . . . . . . . 5
C. Lower Courts Have Applied The
C o m b a t a nt A c t i v i t i e s D e fe n s e
Without Due Caution, And Without
Regard To Securing Federal Control
Over Federal Contractors . . . . . . . . . . . . . . . 7
D. Lower Courts Cannot Apply The
Test They Have Invented With Any
Consistency . . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. The Political Branches Have Consistently
Identified An Interest In Enhancing
Control Over Government Contractors, Not
Immunizing Them . . . . . . . . . . . . . . . . . . . . . . . . 13
ii
Table of Contents
Page
A. The History Of The False Claims Act
Illustrates The Need For Private Suits
To Deter Misconduct . . . . . . . . . . . . . . . . . . 14
B. Congress And The Executive Branch
Have Repeatedly Remarked Upon
L a x O ve r s i ght O f G ove r n ment
Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.
The Government Struggles To
Supervise Contractors . . . . . . . . . . . . . 16
2. Congress And The Executive Have
Agreed That Civil Suits Would
Help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
III. The Combatant Activities Defense Harms
Servicemembers, While The Political
Branches Strongly Favor Them . . . . . . . . . . . . . 22
A. The Combatant Activities Defense
Harms Servicemembers . . . . . . . . . . . . . . . 22
B. C on g r e s s C on s i s t e nt l y Fa vo r s
Servicemembers, Which Should Inform
The Federal Interests At Issue . . . . . . . . . . 23
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iii
TABLE OF AUTHORITIES
Page
CASES
Aiello v. Kellogg, Brown & Root Servs., Inc.,
751 F. Supp. 2d 698 (S.D.N.Y. 2011) . . . . . . . . . . . 12, 13
Al Shimari v. CACI Premier Tech., Inc.,
775 F. App’x 758 (4th Cir. 2019) . . . . . . . . . . . . . . 22, 23
Badilla v. Midwest Air Traffic Control Serv., Inc.,
8 F.4th 105 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . 23
Baragona v. Kuwait Gulf Link Transport Co.,
594 F.3d 852 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . 19
Bentzlin v. Hughes Aircraft Co.,
833 F. Supp. 1486 (C.D. Cal. 1993) . . . . . . . . . . . . . . . 22
Boone v. Lightner,
319 U.S. 561 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Brown v. Gardner,
513 U.S. 115 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Boyle v. United Technologies Corp.,
487 U.S. 500 (1988) . . . . . . . . . . . . . . . . . . . 2-7, 9, 10, 13
Clearfield Trust Co. v. United States,
318 U.S. 363 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Erie R. Co. v. Tompkins,
304 U.S. 64 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iv
Table of Authorities
Page
Harris v. Kellogg Brown & Root Servs., Inc.,
618 F.3d 398 (3d Cir. 2010) . . . . . . . . . . . . . . . 12, 13, 22
Harris v. Kellogg, Brown & Root Servs., Inc.,
878 F. Supp. 2d 543 (W.D. Pa. 2012) . . . . . . . . . . . . . 12
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Hernandez v. Mesa,
589 U.S. 93 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
In re KBR, Inc.,
744 F.3d 326 (4th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 8
Kansas v. Garcia,
589 U.S. 191 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Le Maistre v. Leffers,
333 U.S. 1 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Leli v. V2X, Inc.,
No. 122CV02427TWPTAB, 2023 WL 3476057
(S.D. Ind. May 16, 2023) . . . . . . . . . . . . . . . . . . . . . . . 23
Mahon v. Presidential Airways, Inc.,
460 F. Supp. 2d 1315 (M.D. Fla. 2006) . . . . . . . . . . . 12
Rodriguez v. Fed. Deposit Ins. Corp.,
589 U.S. 132 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
v
Table of Authorities
Page
Saleh v. Titan Corp.,
580 F.3d 1 (D.C. Cir. 2009) . . . . . . . . 8, 9, 11, 12, 14, 21
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Taylor v. Kellogg Brown & Root Servs., Inc.,
No. CIV. 2:09CV341, 2010 WL 1707530
(E.D. Va. Apr. 16, 2010),
as amended (Apr. 19, 2010) . . . . . . . . . . . . . . . . . 13, 22
U.S. ex rel. Milam v. Univ. of Texas M.D.
Anderson Cancer Ctr.,
961 F.2d 46 (4th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . 15
United States, ex rel. Polansky v. Exec. Health
Res., Inc.,
599 U.S. 419 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Oregon,
366 U.S. 643 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Universal Health Servs., Inc. v. United States,
579 U.S. 176 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
STATUTORY PROVISIONS
28 U.S.C. §1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
28 U.S.C. §2671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
vi
Table of Authorities
Page
28 U.S.C. §2680 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
28 U.S.C. §2680(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
28 U.S.C. §2680(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
28 U.S.C. §2680(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10
28 U.S.C. §2680(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
36 U.S.C. §110103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
36 U.S.C. §110103(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
36 U.S.C. §110103(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
False Claims Act . . . . . . . . . . . . . . . . . . . . . . . 3, 14, 15, 16
Federal Tort Claims Act . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
OTHER AUTHORITIES
73 Fed. Reg. 16,765 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 11
Accountability for Foreign Contractors: Hearing
Before the Ad Hoc Subcomm. on Contracting
Oversight of the S. Comm. on Homeland Sec.
& Governmental Affs., 111th Cong. 19 (2009)
https://www.govinfo.gov/content/pkg/CHRG111shrg 56144/pdf/CHRG-111shrg56144.pdf . . . . . . 20
vii
Table of Authorities
Page
Comm’n on Wartime Contracting in Iraq and Afg.,
Transforming Wartime Contracting: Controlling
Costs, Reducing Risks (2011), https://apps.
dtic.mil/sti/tr/pdf/ADA549381.pdf . . . . . . . . 18, 19, 20
Cong. Budget Off., Cost Estimate, S. 2782, 111th
Cong. (2009–2010), https://www.cbo.gov/sites/
default /f i les /111th- cong ress-2 0 0 9 -2 010/
costestimate/s27820.pdf . . . . . . . . . . . . . . . . . . . . . . . 21
Defense Management: DOD Needs to Reexamine
National Defense Authorization Act For
Fiscal Year 2008, PL 110–181, January 28, 2008,
122 Stat. 3 §841 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
DOD, Instruction 3020.41: Contractor Personnel
Authorized to Accompany the U.S. Armed Forces
(Oct. 3, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Defense Management: DOD Needs to Reexamine
Its Extensive Reliance on Contractors
and Continue to Improve Management
a n d O v e r s i g h t : He a r i n g B e f o r e t h e
Subcomm. on Readiness of the H. Comm.
on Ar med Ser vices, 110th Cong. (20 08)
https://www.gao.gov/assets/gao-08-572t.pdf . . . . . . 17
Oversight of the False Claims Act, 114th Cong. 11
H. No. 114-72 (Apr. 28, 2016) . . . . . . . . . . . . . . . . . . . 15
viii
Table of Authorities
Page
The Final Report of the Comm’n on Wartime
Contracting in Iraq and Afghanistan, Hearing
Before the Subcommittee on Readiness and
Management Suppor t, 112 Cong. (2011)
https://www.govinfo.gov/content/pkg/CHRG112shrg72564/ pdf/CHRG- 112shrg72564.pdf . . . . 21
U. S. Gen. Accounting Off ice, GAO - 0 3 -98 ,
Performance and Accountability Series: Major
Management Challenges and Program Risks:
Dep’t of Def. (2003), https://www.gao.gov/assets/
gao-03-98.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
U.S. Gen. Accounting Office, GAO-07-145, Military
Operations: High-Level DOD Action Needed
to Address Long-standing Problems with
Management and Oversight of Contractors
Supporting Deployed Forces (2006), https://
www.gao.gov/assets/gao-07-145.pdf . . . . . . . . . . . . . 17
1
INTEREST OF AMICI CURIAE1
The Center for Military Law and Policy is a notfor-profit think tank that strengthens legal protections
for servicemembers and veterans. Dr. Dwight Stirling, a
law professor and reserve JAG officer, founded and leads
the Center. The Center engages in research, educational
initiatives, and policy advocacy, including on the Feres
Doctrine, sexual assault, and reducing the civilianmilitary gap by educating the civilian population about
military life and culture.
Veterans Legal Services (VLS), is a non-profit
located in Boston, Massachusetts devoted to helping
veterans overcome adversity by providing free civil
legal aid that honors their service and responds to their
distinctive needs. More than half of VLS’s clients have a
disability, often caused by their service, and many have
experienced homelessness. VLS draws on its experience
representing individual veterans in a variety of civil legal
matters to inform its legislative, regulatory, and appellate
advocacy, promoting policy change to benefit veterans.
The Military-Veterans Advocacy Inc. (MVA) is a
nonprofit organization that litigates and advocates for
servicemembers and veterans. Established in 2012 in
Slidell, Louisiana, MVA educates servicemembers and
veterans concerning rights and benefits, represents
veterans contesting the improper denial of benefits,
1. Counsel of record received notice of amici’s intent to file
this brief nine days before filing, giving rise to the motion for leave
above. No counsel for a party authored any part of this brief or
made any monetary contribution intended to fund its preparation
or submission.
2
and advocates for legislation to protect and expand
servicemembers’ and veterans’ rights and benefits.
The Jewish War Veterans of the United States of
America (JWV) organized in 1896 by Jewish veterans
of the Civil War, is the oldest active national veterans’
service organization in America. Incorporated in 1924,
and chartered by an act of Congress in 1984, see 36 U.S.C.
§110103, JWV’s objectives include to “encourage the
doctrine of universal liberty, equal rights, and full justice
to all men,” id. §110103(5) and to “preserve the spirit of
comradeship by mutual helpfulness to comrades and their
families,” id. §110103(7). The JWV has long advocated that
all servicemembers and veterans receive the benefits to
which they are entitled.
SUMMARY OF THE ARGUMENT
The combatant activities defense, as fashioned by
certain lower courts in reliance on Boyle v. United
Technologies Corp., 487 U.S. 500 (1988), is unmoored
from the federal interests that initially justified creating
a narrow federal common law defense. This Court
has repeatedly instructed that federal common law is
disfavored. Where federal courts do fashion common law
rules, “caution” is paramount. Hernandez v. Mesa, 589
U.S. 93, 101 (2020). Lower courts have dispensed with
that caution.
This Court grounded Boyle in securing federal control
over federal contractors, preempting state law only
where state law conflicted with that goal by commanding
contractors to deviate from their contract. But under the
combatant activities defense, lower courts have jettisoned
3
both requirements, invoking a generalized federal interest
in nullifying tort law for non-combatant contractors
anywhere near the battlefield, and calling the result field
preemption to escape Boyle’s requirement of significant
conflict.
The result is doctrinal disarray. Lower courts have
diverged on which contracts and which activities count as
“combatant” or “integrated” enough to trigger immunity.
They have reached contradictory rulings on similar facts
even when purportedly applying the same test. Rather
than securing fidelity to federal directives, this approach
simply bars many claims outright—even in instances of
obvious negligence that undisputedly is not required by
any federal command.
Nor is there any reason to believe that Congress
or the Executive Branch supports blanket battlefield
preemption. To the contrary, both have consistently
embraced a policy of enhanced accountability for
government contractors. The False Claims Act’s history
and official investigations confirm that private suits
play an indispensable role in deterring malfeasance.
Congress has repeatedly made clear, in contexts ranging
from wartime contracting oversight to whistleblower
protections, that private enforcement helps address
rampant fraud and mismanagement among contractors
in theaters of war. Although lower courts posit that
eliminating state tort liability furthers vague federal
interests in avoiding battlefield regulation, this contradicts
the political branches’ longstanding acknowledgment that
public resources alone are insufficient to police contractor
misconduct. Private suits help.
4
Finally, the combatant activities defense harms
servicemembers, contrary to deeply rooted congressional
policy. Erecting broad tort immunities allows injuries
caused by negligent or unscrupulous contractors to
go uncompensated. It also prolongs and complicates
litigation, subjecting servicemembers to multiple appeals
over an amorphous immunity, rather than providing
a clear avenue for relief. Given Congress’s consistent
bipartisan efforts to safeguard servicemembers and
ensure contractor accountability, there is no basis for
the lower courts’ supposition that federal policy somehow
demands blanket contractor immunity.
Only this Court’s review can rein in the profligate
expansion of the government contractor defense that has
pushed federal common law into a radical new context.
The combatant activities defense, as now applied by
several circuits, lacks grounding in positive law or even
the interests and preemption principles from Boyle. More
practically, it undermines accountability for contractors
and thwarts this Nation’s longstanding solicitude for its
servicemembers.
ARGUMENT
I.
The Combatant Activities Defense Furthers None
Of The Federal Interests Identified In Boyle And
Contradicts This Court’s Preemption Doctrine.
A.
Federal Common Law Is Disfavored.
This Court has long held that “[e]xcept in matters
governed by the Federal Constitution or by acts of
Congress, the law to be applied in any case is the law of
5
the state. . . . There is no federal general common law.”
Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). This
principle applies equally to defenses, to causes of action,
or to any other rule of decision. After Erie closed the
“old door” of general law, federal courts fashioned the
“new door” of “[f]ederal common law.” Sosa v. AlvarezMachain, 542 U.S. 692, 746 (2004) (Scalia, J., concurring).
But, each time, before opening this new door, courts must
ask “what authorizes that peculiar exception from Erie’s
fundamental holding that a general common law does not
exist.” Id. at 744.
Even when applying old precedents that adopted
federal common law rules, the Court’s “watchword is
caution,” Hernandez v. Mesa, 589 U.S. 93, 101 (2020),
declining to expand those rules to new contexts. Rather, it
takes the opportunity in each change of context to repeat
that “[t]he cases in which federal courts may engage in
common lawmaking are few and far between.” Rodriguez
v. Fed. Deposit Ins. Corp., 589 U.S. 132, 133 (2020).
The lower courts have incautiously expanded the
federal common law defense crafted in Boyle v. United
Technologies Corp., 487 U.S. 500 (1988). That case
ensured adherence to government contracts, but has
been stretched to the new context of so-called combatant
activities by government contractors. Those new areas
lack the federal interests this Court relied upon in Boyle.
B. Boyle Secures Effective Federal Control Over
Federal Contractors.
In Boyle, this Court fashioned a federal common law
defense based on two particular federal interests. Id. at
6
504. The first interest was the “obligations to and rights
of the United States under its contracts,” since tort law
could impose liability on contractors for performing
its contractual duty. Id. The second interest was “the
civil liability of federal officials for actions taken in the
course of their duty.” Id. at 505. The Court linked this
interest to the “discretionary function” exception in the
Federal Tort Claims Act, explaining that “the selection
of the appropriate design for military equipment” is
discretionary because it “involves not merely engineering
analysis but judgment . . . [about] the trade-off between
greater safety and greater combat effectiveness.” Id. at
511.
These interests “merely establish[] a necessary, not a
sufficient, condition.” Id. at 507. Preemption follows only if
the interests produce a “significant conflict” with state law.
Id. The Court fashioned a three-part rule to implement
the general standard of “significant conflict”:
(1) the United States approved reasonably
precise specifications; (2) the equipment
conformed to those specifications; and (3) the
supplier warned the United States about the
dangers in the use of the equipment that were
known to the supplier but not to the United
States.
Id. at 512.
Two points are worth noting. First, though Boyle
referenced the discretionary function exception, it did
not hold that a discretionary function by a government
officer was sufficient to preempt. Rather, the discretionary
7
decision had to be reduced to a formal, precise contract
term for preemption to apply. Second, at its core, Boyle
secures informed federal control over federal contractors.
Where all three prongs are met, federal officials are
effectively overseeing and directing contractors,
preempting contrary duties. But where any prong is
missing, federal control is too, and state law duties may
well help induce the federal contractor to act as a faithful
agent.
The combatant activities case law imposes federal
common law in a wholly new context divorced from these
federal interests and the touchstone of effective federal
control over federal contractors.
C.
Lower Courts Have Applied The Combatant
Activities Defense Without Due Caution, And
Without Regard To Securing Federal Control
Over Federal Contractors.
In extending Boyle to cover government contractors in
combatant activities, the lower court failed to exercise the
caution this Court has required when expanding federal
common law. Rather, multiple circuits have plowed ahead
into entirely new contexts, based on a different statutory
provision, invoking different federal interests, and even
applying field preemption rather than conflict preemption.
The result is disarray.
The Federal Tort Claims Act waives the United
States’ sovereign immunity for certain claims, 28 U.S.C.
§1346, subject to fourteen exceptions, see id. §2680.
Federal contractors have no sovereign immunity in
the first place. The waiver does not mention them; the
8
exceptions do not mention them; and a separate provision
expressly excludes them, see id. §2671. But Boyle looked
to the discretionary function exception of the FTCA for
the contours of one of its federal interests. This Court has
never endorsed invoking the other thirteen exceptions in
§2680 as preemptive federal interests, but lower courts
have done so anyway. 2 Subsection (j) excepts from the
waiver of sovereign immunity “[a]ny claim arising out of
the combatant activities of the military or naval forces, or
the Coast Guard, during time of war.” Id. §2680(j).
According to courts that have embraced it, the
theory of the combatant activities defense is that “when
state tort law touches the military’s battlefield conduct
and decisions, it inevitably conflicts with the combatant
activity exception’s goal of eliminating such regulation
of the military during wartime.” App. 21 (quoting In re
KBR, Inc., 744 F.3d 326, 349 (4th Cir. 2014)). That interest
dominates—irrespective of actual or exercised control
over contractors by the government—whenever “a private
service contractor is integrated into combatant activities
over which the military retains command authority.” Saleh
v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir. 2009). As the D.C.
Circuit put it, “all of the traditional rationales for tort
law—deterrence of risk-taking behavior, compensation
of victims, and punishment of tortfeasors—are singularly
out of place in combat situations.” Id. at 7. The federal
interest, under this view, “is simply the elimination of
tort from the battlefield.” Id. Federal law, or, really, the
2. Presumably “postal contractor immunity,” “quarantine
contractor immunity,” and “Panama Canal Company contractor
immunity” will someday grace the Federal Reporter. See 28 U.S.C.
§2680(b), (f), (m).
9
absence of any tort duties whatsoever, “occupies the field
when it comes to warfare.” Id.
Under this theory, the federal interest is not (as it
was in Boyle) to secure effective federal control over
contractors. Rather, the interest is to sweep away
limits on malfeasance from government contractors
on the battlefield, accepting some negligence or other
misbehavior, presumably to achieve other government
priorities. Those include minimizing “the costs of imposing
tort liability on government contractors,” which would be
“passed through to the American taxpayer.” Id. at 8. It
also includes preventing state law from “interfer[ing] with
the federal government’s authority to punish and deter
misconduct by its own contractors.” Id. These federal
interests depart sharply from Boyle in three respects.
First, though Boyle required the marriage of a
discretionary function reduced to a specific contractual
term, some lower courts have upheld preemption based
solely on the FTCA’s combatant activities exception,
without any other federal interest. Boyle would have
been much broader if preemption followed from any
governmental discretionary decision, apart from the
requirement to reduce that decision to a specification in
a government contract.
Second, in contrast to Boyle, lower courts are claiming
that federal interests are furthered by barring tort
duties even when contractors fail to perform under their
government contracts. 3 It is difficult to see how there
3. Recall that if a contractor were performing as specified in
the contract, Boyle would protect them, eliminating any need for
10
could be any federal interest in a contractor performing
negligent electrical maintenance or failing to secure a
perimeter. To the extent allowing contractors to perform
incompetently might cost less, this seems a thin reed on
which to hang preemption.
Third, by moving from conflict preemption to field
preemption, lower courts ignore Boyle’s command that
“conflict there must be.” 487 U.S. at 508. The cases are
no more consonant with this Court’s field preemption
precedents, which themselves require “a comprehensive
and unified system” of regulation suggesting that Congress
intended to occupy the field. Kansas v. Garcia, 589 U.S.
191, 210 (2020). Lower courts have not examined whether
federal regulations on contractors are “comprehensive
and unified”—they of course are not—but have breezily
inferred field preemption from the text of §2680(j) which
does not apply by its terms. None of this Court’s field
preemption cases look anything like this.4
D.
Lower Courts Cannot Apply The Test They
Have Invented With Any Consistency.
Because the combatant activities defense is rootless
and based on judicially invented federal interests, in
a combatant activities defense. It is consequently the rule, rather
than the exception, that the combatant activities defense applies
where contractors were not performing under their contract.
4. If the argument is that there should be a uniform rule as in
Clearfield Trust Co. v. United States, 318 U.S. 363 (1943), there is
no explanation for why the uniform federal rule is a defense rather
than a tort regime. After all, Clearfield and its progeny set forth
federal contract law, not merely a defense to contract claims.
11
practice it produced an unpredictable morass that
demands this Court’s correction. The Petition outlines an
acknowledged “3-1-1 split,” Pet. 3, but, if anything, that
undersells the dissonance.
This result is inevitable because the tests on all
sides of the split are hopelessly standardless. The D.C.
Circuit’s test is: “During wartime, where a private
service contractor is integrated into combatant activities
over which the military retains command authority, a
tort claim arising out of the contractor’s engagement in
such activities shall be preempted.” Saleh, 580 F.3d at
9. What does it mean to be “integrated,” and when does
the military not “retain command authority”? What
does it mean for a contractor to “engage[]” in combatant
activities, when contractors do not fight in American
wars?5 The generalities cash out in lengthy litigation,
frequent appeals, and arbitrary results.
The very same location might be a battlefield to one
court, but not another. The lower court here held that
Fluor was entangled in combatant activities in Bagram
Airfield in November, 2016, App. 2, but in litigation over the
Blackwater 61 crash that took off from Bagram Airfield
in November, 2004, the lower courts rejected a combatant
5. The D.C. Circuit spoke of “battle-field preemption,”
“warfare,” and “combat” but never explained how those terms
are consistent with contractor’s status as non-combatants who
are not permitted to engage in combat, a point the United States
has noted. Compare Saleh, 580 F.3d at 7 with DOD, Instruction
3020.41: Contractor Personnel Authorized to Accompany the U.S.
Armed Forces ¶ 6.1.1 (Oct. 3, 2005) (contractors are “civilians”);
73 Fed. Reg. 16,765 (2008) (“[T]he Government is not contracting
out combat functions.”).
12
activities defense for negligent contractor pilots. See
Mahon v. Presidential Airways, Inc., 460 F. Supp. 2d
1315, 1318 (M.D. Fla. 2006) (rejecting the combatant
activities defense), aff’d 502 F.3d 1331 (11th Cir. 2007);
reconsideration denied, No. 605CV1002ORL28GJK,
2009 WL 10705563, at *2 (M.D. Fla. Nov. 6, 2009) (on
reconsideration after discovery and after Saleh was
decided, still rejecting the defense).
One court noted that “indoor latrine maintenance
may not appear related to combatant activity,” Aiello v.
Kellogg, Brown & Root Servs., Inc., 751 F. Supp. 2d 698,
713 (S.D.N.Y. 2011), but concluded it was, holding that a
contractor’s faulty tiling was covered, id. In the process,
it “respectfully disagree[d],” id. at 712, with another
case involving the same contractor’s latrines. There,
the contractor’s faulty electrical wiring was not covered
by the defense. Harris v. Kellogg, Brown & Root Servs.,
Inc., 618 F. Supp. 2d 400, 434 (W.D. Pa. 2009). The court
later changed its mind about the faulty wiring, entering
judgment for the contractor based on the combatant
activities defense, Harris v. Kellogg, Brown & Root
Servs., Inc., 878 F. Supp. 2d 543, 597 (W.D. Pa. 2012). That
ruling, in turn, was reversed on appeal. 724 F.3d 458 (3d
Cir. 2013). One contractor, two latrines, three courts, four
different opinions.
The reasons that seem dispositive for one court will
hardly matter for another. The Third Circuit found it
critical that “the relevant contracts and work orders did
not prescribe how KBR was to perform the work,” but
rather “provided for general requirements or objectives
and then gave KBR considerable discretion in deciding
how to satisfy them.” Harris, 724 F.3d at 481. From that,
13
it concluded that “[t]he military did not retain command
authority over KBR’s installation and maintenance of the
pump.” Id. In the Aiello case, however, the court agreed
that “there is no proffered evidence that the challenged
discretion exercised here, designing the urinals and
maintaining the toilet facility, was exercised by the
government.” 751 F. Supp. 2d at 708 n.2. Nevertheless, it
concluded that the claim “arises from combatant activity
of the military, and K[BR] was integrated into activities
over which the military retained command authority,”
which was enough. Id. at 715. Another court also held
that the same contractor’s negligent maintenance of an
electrical generator in Camp Fallujah (causing another
electrocution) was combatant activities, but this opinion
had no discussion of the military’s requirements or
commands. Taylor v. Kellogg Brown & Root Servs., Inc.,
No. CIV. 2:09CV341, 2010 WL 1707530, at *11 (E.D. Va.
Apr. 16, 2010), as amended (Apr. 19, 2010), aff’d in part,
vacated in part, 658 F.3d 402 (4th Cir. 2011).6 Notably,
all three courts claimed to be applying the D.C. Circuit’s
Saleh test.
II. The Political Branches Have Consistently Identified
An Interest In Enhancing Control Over Government
Contractors, Not Immunizing Them.
The combatant activities exception is not only
inconsistent with Boyle and unprincipled in application but
also at odds with Congress and the Executive Branch’s
6. The panel splintered, with Judge Niemeyer joining both
opinions (one affirming on lack of jurisdiction, and another on the
combatant activities defense). 658 F.3d at 413. He believed this
“provid[ed] alternative grounds for the judgment.” Id.
14
longstanding policy goals for federal contractors. The net
result of the defense is that government contractors get
immunity for misconduct and injured servicemembers
bear the costs.
The lower court’s supposed federal interest in giving
contractors’ free rein contradicts more than a century
of lessons from the False Claims Act and more recent
investigations of oversight failures during the War on
Terror. The political branches have consistently expressed
a strong federal policy in favor of accountability for
contractors and solicitude for servicemembers, the precise
opposite of the supposed federal interest identified by the
lower courts.
A.
The Histor y Of The False Claims Act
Illustrates The Need For Private Suits To
Deter Misconduct.
Under the lower court’s rule, if a contractor sold
shoddy equipment that injured soldiers, a private party—
even one who discovered it in the field—could file a qui
tam suit and recover 30% of the claim, but a vital federal
interest in banishing legal duties from the battlefield
would block any civil suits from the soldiers harmed by
the equipment. That cannot be right.
The False Claims Act traces back to President
Lincoln’s effort to deter unscrupulous suppliers during the
Civil War. United States, ex rel. Polansky v. Exec. Health
Res., Inc., 599 U.S. 419, 424 (2023). The law empowers
“private parties” called “relators” to bring “qui tam
actions” seeking to prove fraud against the United States
and gain a bounty of up to 30% for doing so. Id. at 424–25.
15
Since the 1980s, Congress has periodically amended the
False Claims Act, sometimes “increas[ing] the Act’s
civil penalties,” Universal Health Servs., Inc. v. United
States, 579 U.S. 176, 182 (2016), sometimes broadening
its definitions, and sometimes rationalizing procedural
requirements.
Congress has never provided a False Claims Act
defense based on combatant activities or felt the need to
keep private suits away from the battlefield. Rather, it
“has let loose a posse of ad hoc deputies to uncover and
prosecute frauds.” U.S. ex rel. Milam v. Univ. of Texas
M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.
1992). The False Claims Act illustrates that there is no
federal interest in abolishing private litigation against
contractors—even those in a theater of war.
It is illuminating to contrast Senator Grassley’s
view of private litigation with the Saleh majority’s. The
D.C. Circuit argued that because the government had
“numerous criminal and contractual enforcement options
available” but did not prosecute, that demonstrated that
“allowance of these claims will potentially interfere with
the federal government’s authority to punish and deter
misconduct by its own contractors.” Saleh, 580 F.3d at 8.
Senator Grassley has explained that the United States
needs private citizen False Claims Act suits because
“[t]hey get results. Without whistleblowers, the government
simply does not have the capability to identify and
prosecute the ever-expanding and creative schemes to
bilk the taxpayers. That is not rhetoric. That is history.”
Oversight of the False Claims Act, 114th Cong. 11 H. No.
114-72 (Apr. 28, 2016) (statement of Sen. Grassley).
16
The lower courts’ federal interests analysis relies
upon the unsupported assumption that government
enforcement and oversight mechanisms for government
contractors are optimal without private enforcement, and
that additional litigation would upset that balance. That
assumption is contradicted by a century of False Claims
Act history, and decades of more recent investigations
into the wars in Iraq and Afghanistan.
B. Congress And The Executive Branch Have
Repeatedly Remarked Upon Lax Oversight Of
Government Contractors.
Far from embracing a policy of balancing governmentcontractor malfeasance against other goals, Congress
and the Executive Branch have consistently expressed
grave concerns about the government’s difficulty in
overseeing military contractors effectively. Official
reports, hearings, and statements from the Department
of Defense, the Department of Justice, and bipartisan
commissions all confirm systemic shortcomings—ranging
from understaffed oversight offices to inadequate
enforcement mechanisms—that lead to negligence and
pervasive waste, fraud, and abuse. That is why Congress
has consistently invited private parties to assist in rooting
out fraud and holding contractors accountable. There is
no federal interest in giving contractors greater leeway to
fail to perform their contract, which is what the combatant
activities defense does.
1.
The Government Struggles To Supervise
Contractors.
The Government Accountability Office has warned of
ineffective contractor oversight for decades, intensifying
17
during the War on Terror. “Too often, requirements
are not clearly defined . . . and contractors are not
adequately overseen.” 7 The GAO deemed “DOD’s contract
management as a high-risk area.” Id. GAO’s findings were
much the same in 2006.8 In 2008, GAO investigations found
that “the Army lacked an adequate acquisition workforce
in Iraq to oversee billions of dollars for which they were
responsible.” 9 “Contractor employees were stationed
in various locations around Iraq, with no assigned
representative on site to monitor their work.” Id. at 13.
On some bases, “senior military commanders . . . had no
source to draw upon to determine how many contractors
were on each installation.” Id. at 15 (emphasis added). GAO
doubted the military’s ability to ensure “that contractors
are meeting their contract requirements.” Id. at 17.
Following this drumbeat, in 2008, Congress authorized
a multi-year, comprehensive examination of military
contracting by the bipartisan Commission on Wartime
7. U.S. Gen. Accounting Office, GAO-03-98, Performance
and Accountability Series: Major Management Challenges and
Program Risks: Dep’t of Def. 62 (2003), https://www.gao.gov/
assets/gao-03-98.pdf.
8. E.g., U.S. Gen. Accounting Office, GAO-07-145, Military
Operations: High-Level DOD Action Needed to Address
Long-standing Problems with Management and Oversight of
Contractors Supporting Deployed Forces (2006), https://www.
gao.gov/assets/gao-07-145.pdf.
9. Defense Management: DOD Needs to Reexamine Its
Extensive Reliance on Contractors and Continue to Improve
Management and Oversight: Hearing Before the Subcomm. on
Readiness of the H. Comm. on Armed Services, 110th Cong., at
12 (2008) (statement of David M. Walker, Comptroller General of
the United States), https://www.gao.gov/assets/gao-08-572t.pdf.
18
Contracting in Iraq and Afghanistan.10 Its unanimous final
report revealed “[n]umerous . . . serious incidents of waste
at every phase of the contingency acquisition process, from
project selection and requirements definition, through
solicitation and vetting, to management and oversight.
Problems are widespread and endemic.”11 It called for
“nothing less than sweeping reform.” Id. at 13.
The Commission found that the military branches
had “demonstrated their inability to manage large
numbers of contractors effectively.” Id. at 19; see also
id. at 2 (“[T]he government also lacks the acquisition
personnel and structures needed to manage and oversee
an unprecedentedly large contractor force that at times
has outnumbered troops in the field.”). The “heavy reliance
on contractors has overwhelmed the government’s ability
to conduct proper planning, management, and oversight of
the contingency-contracting function.” Id. at 3. “Without
sufficient management and oversight, officials have been
late to identify and correct poor contractor performance.
Key deficiencies include . . . inadequate protection of
property and personnel.” Id. at 6.12 The Commission’s
overall “conservative estimate of waste and fraud rang[ed]
from $31 billion to $60 billion” between 2002 and 2011.
Id. at 5 (emphasis added).
10. See National Defense Authorization Act For Fiscal Year
2008, PL 110–181, January 28, 2008, 122 Stat 3 §841.
11. Comm’n on Wartime Contracting in Iraq and Afg.,
Transforming Wartime Contracting: Controlling Costs, Reducing
Risks 6 (2011), https://apps.dtic.mil/sti/tr/pdf/ADA549381.pdf.
12. Notably, “in Iraq and Afghanistan . . . 66 percent of
contract spending is for services,” id. at 7, and Fluor—Respondent
here—was the fifth largest contractor, id. at 25.
19
2.
Congress And The Executive Have Agreed
That Civil Suits Would Help.
The Commission recog nized the challenge of
“fostering a culture of contractor accountability,” and
suggested one cure was the “[e]nforcement of laws,
regulations, and contract terms,” which “serves two
purposes: it addresses wasteful and fraudulent behavior,
and it sets a standard for future performance.” Id. at
10. The government needed “[m]ore aggressive use of
enforcement techniques for contracting” and “[e]xpansion
of investigative authority and jurisdiction” to “facilitate
imposing effective accountability on contractors, especially
foreign contractors and subcontractors who are difficult
or impossible to subject to U.S. law.” Id. at 11.
Though “[d]eterrence is especially critical,” id.
at 158, “[f]ew cases of wartime-contracting fraud are
actually prosecuted” for reasons including “the difficulty
of investigating them, and the cost of prosecution,” id.
at 92. Noting that under-enforcement, the Commission
bemoaned that suits by “private parties to recover on
tort claims arising out of conduct related to government
contracts, are protracted and expensive for all parties
involved,” id. at 158, and sometimes claims “have gone
unaddressed because the U.S. courts lack personal
jurisdiction over the foreign [contractor] defendants,” id.13
It therefore suggested requiring that contractors consent
to be sued in the United States, under state law. Id. at 160.
13. This issue was inspired by the facts of Baragona v.
Kuwait Gulf Link Transport Co., in which a Kuwaiti contractor
negligently killed a soldier while driving a truck in Iraq, but
defeated a suit based on lack of personal jurisdiction. 594 F.3d
852, 854 (11th Cir. 2010).
20
The Commission recognized that contractor oversight is
about more than money: “lives will be lost because of waste
and mismanagement.” Id. at 13.
The Executive Branch embraced these findings.
A representative of the DOJ told Congress while the
Commission’s Report was being drafted that it did not
oppose a law requiring “contractors to consent to personal
jurisdiction, thereby allowing U.S. courts to hear civil
suits alleging . . . serious bodily injury to members
of the U.S. armed forces, U.S. civilian employees, or
U.S. citizens employed by contractors working under
government contracts performed abroad,” and that “the
Department of Justice supports protecting the rights
of individuals and their families to recover appropriate
damages for injuries caused by the negligent acts of
foreign contractors.”14 A DOD representative also agreed
because “[t]he U.S. Government should not do business
with companies that are not accountable for their
actions.”15 In a hearing two years later (after the final
report was issued) a procurement official again agreed,
because “[a]ll contractors, including foreign contractors,
that perform under U.S. Government contracts should be
held legally accountable for wrongdoing in connection with
their performance that results in injuries to U.S. military,
14. Accountability for Foreign Contractors: Hearing Before
the Ad Hoc Subcomm. on Contracting Oversight of the S. Comm.
on Homeland Sec. & Governmental Affs., 111th Cong. 19, 20 (2009)
(statement of Tony West, Assistant Att’y Gen., Civil Div., U.S.
Dep’t of Justice), https://www.govinfo.gov/content/pkg/CHRG111shrg56144/pdf/CHRG-111shrg56144.pdf
15. Id. at 21 (statement of Richard T. Ginman, Deputy Dir. for
Program Acquisition and Contingency Contracting, Dep’t of Def.).
21
civilian, and Government contractor personnel.”16 The
Congressional Budget Office estimated that requiring
consent to suit in U.S. Courts “would not have a significant
cost.”17
The contrast between these consistent findings and
cases like Saleh and the opinion below is striking. No one
suggested—either in the Commission Report or in the
hearings—that tort law has no role on the battlefield, or
that government contractors would be over-deterred by
tort duties. While the D.C. Circuit inferred from the fact
of no prosecution that any civil suit would “interfere”
with the government’s decision not to prosecute, Saleh,
580 F.3d at 8, the reality is that prosecution is costly, and
the government is under-resourced. Those constraints
are why Congress is eager for private plaintiffs to fill the
gap when they can.
16. The Final Report of the Comm’n on Wartime Contracting
in Iraq and Afghanistan, Hearing Before the Subcommittee
on Readiness and Management Support, 112 Cong. 71 (2011)
(statement of Frank Kendall, Acting Under Secretary of Defense
for Acquisition, Technology, and Logistics), https://www.govinfo.
gov/content/pkg/CHRG-112shrg72564/pdf/CHRG-112shrg72564.
pdf.
17. Cong. Budget Off., Cost Estimate, S. 2782, 111th Cong.
(2009 –2010), https://w w w.cbo.gov/sites/default/files/111thcongress-2009-2010/costestimate/s27820.pdf.
22
III. The Combata nt Activ ities Defense Ha r ms
Servicemembers, While The Political Branches
Strongly Favor Them.
A.
The Combatant Activities Defense Harms
Servicemembers.
This case illustrates the most obvious way the
combatant activities defense harms servicemembers—
it defeats their claims, even where the government
contractor was negligent according to a governmental
investigation. Servicemembers are prepared to risk
life and limb to fight for the nation, but we should not
ask them to suffer without compensation from injuries
caused by a contractor’s defective missile,18 negligent
electrical repair,19 or dozens of other injuries that courts
have excused.
The combatant activities defense can g reatly
complicate and lengthen a servicemember’s lawsuit
whether he wins or loses. Defendants routinely raise it,
and then often attempt interlocutory appeals if it fails. It
took five years and two appeals to resolve the combatant
activities defense in Harris v. Kellogg Brown & Root
Servs., Inc., 618 F.3d 398, 400 (3d Cir. 2010) (dismissing
appeal); 724 F.3d 458 (3d Cir. 2013) (vacating and
remanding). The Al Shimari case was appealed five times,
with most of the appeals dismissed (after substantial
18. Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1487
(C.D. Cal. 1993).
19. Taylor v. Kellogg Brown & Root Servs., Inc., No. CIV.
2:09CV341, 2010 WL 1707530, at *1 (E.D. Va. Apr. 16, 2010), as
amended (Apr. 19, 2010).
23
delay) for lack of jurisdiction. E.g., Al Shimari v. CACI
Premier Tech., Inc., 775 F. App’x 758, 760 (4th Cir. 2019).
Defendants can invoke the combatant activities defense
in tandem with federal officer removal to yank cases out of
state court—and earn an appeal of a remand order—even
if there is no other basis for federal jurisdiction. Badilla
v. Midwest Air Traffic Control Serv., Inc., 8 F.4th 105, 120
(2d Cir. 2021) (affirming denial of motion to remand based
on the federal defense, even though it found the defense
did not succeed on the merits); Leli v. V2X, Inc., No.
122CV02427TWPTAB, 2023 WL 3476057, at *4 (S.D. Ind.
May 16, 2023) (“combatant activities defense is colorable”).
The upshot is delayed, expensive litigation for years
on non-merits issues, solely benefiting contractors over
servicemembers. This is unlike any system Congress
would have set up.
B. Congress Consistently Favors Servicemembers,
Which Should Inform The Federal Interests At
Issue.
When identifying federal interests sufficient to ground
federal common law, the interests Congress itself values
are instructive. “The solicitude of Congress for veterans
is of long standing.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 440 (2011) (quoting United States
v. Oregon, 366 U.S. 643, 647 (1961)). Few priorities are
higher than favoring “those who have been obliged to drop
their own affairs to take up the burdens of the nation.”
Boone v. Lightner, 319 U.S. 561, 575 (1943).
24
So consistent and longstanding is this principle that
the Court has formalized it into a “rule that interpretive
doubt is to be resolved in the veteran’s favor.” Brown v.
Gardner, 513 U.S. 115, 118 (1994). This canon is a sound
means of divining congressional intent because of the
bipartisan consensus in favor of servicemembers. Our
Nation’s laws “must be read with an eye friendly to those
who dropped their affairs to answer their country’s call.”
Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).
Lower courts have based the combatant activities
defense on the FTCA, but would be hard pressed to say
that their interpretation of the statute is free of doubt.
The plain text simply does not require (or even suggest)
a combatant activities defense for contractors. On the
text alone, the lower court’s rule is indefensible. Once
in the realm of uncertainty and policy, courts construe
statutes to favor servicemembers because that furthers
congressional intent.
This principle applies even more strongly in the
treacherous waters of federal common law. The federal
policy favoring servicemembers is no weaker merely
because courts are fashioning the law in a common law
manner, rather than interpreting the law. Or, at least, if
courts ignore this precept, they should admit that they
are defying Congress’s consistent policy goal in favor of
their own.
25
CONCLUSION
For the reasons stated above, this Court should grant
the writ of certiorari.
Respectfully submitted,
Noah Heinz
Counsel of Record
A lbert Pak
Pak Heinz PLLC
20 F Street, NW, 7th Floor
Washington, DC 20001
(202) 505-6354
noah.heinz@pakheinz.com
Counsel for Amici Curiae
March 28, 2025
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